KBL case commercial not constitutional

A panel of three judges dismisses KBL urgent application against the government Say the urgency is self- created

Apanel of three High Court judges have indicated that Kgalagadi Breweries Property Limited ( KBL) launched its case against government as a commercial one and not Constitutional as claimed during arguments in court.

The judges Godfrey Radijeng, Motswagole Motswagole and Barnabas Nyamadzabo said this when dismissing an application on urgency by KBL.

President Mokgweetsi Masisi, the Attorney General and former Health Director, Dr. Malebogo Kebabonye were dragged to court in the case in which KBL is challenging Masisi’s ban on alcohol and his State of Emergency regulations.

“I take the view that the Applicant’s characterisation of its case as Constitutional and not commercial is not a candid reflection of what it has deposed to.

“The Applicant has come to court as per its founding affidavit because it would be financially prejudiced, because its revenues are affected, because it alleges it suffers daily losses that are enormous.

“I can see no other basis for a denial that this is but a commercial case. It cannot be the case in our jurisdiction that the mere lodging of Constitutional case or challenge renders a matter urgent. A party must still comply with the requirements of Order 12,” explained Justice Radijeng when delivering the judgement.

The judge stated that the other leg of the urgency test requires a party to provide reasons why it may not have substantial redress in due course.

“I am at pains to understand the reasons proffered by the Applicant as adequately meeting the objective threshold of the test,” Justice Radijeng said. He added that KBL’s alleged harm or loss is defined in financial, monetary or economic terms.

According to the judge, he is not persuaded that a litigant with a possible claim sounding in money entitles him/ her to preferential treatment or that the Rules of Court should be abridged.

The judge stated that Regulation 21 was promulgated in 2020, and the Applicant seeks an order declaring it unlawful in July 2021.

The Applicant, according to Justice Radijeng, has not explained why it has not acted with speed to seek the order it seeks.

“I have principally understood the Applicant to challenge the impugned notice, and to seek to declare unlawful regulation that has been in existence for more than six months without explanation or connection cannot meet the explicit circumstances rendering the matter urgent threshold.

“The Applicant comes to justice late on this prayer and the urgency if any is self- created. I take the view that given the concession by the Applicant as regards its prayer regarding Regulation 21, its case is weakened on urgency, much as its other prayers relate to matters that occurred more recently,” said Justice Radijeng, with his brothers - Justices Motswagole and Nyamadzabo concurring.

Advocate Andrew Redding ( SC) representing KBL told the court that the ban does not only affect KBL and its finances. He said the ban affects a lot of people ranging from distributors, employees and their dependents.

He revealed that there are two employees who are lodging a case to indicate that the ban has affected their livelihoods due to the salary cuts at KBL.

“There is a Court of Appeal decision by President Ian Kirby where he said when dealing with livelihoods we are not talking about commercial. KBL interest is the success of its business.

“The success is based on the livelihoods of its employees. This is not a commercial case. The acts of the government will affect a lot of people.

“We know there is public interest for this matter.

It is of significant importance and has to be heard urgently,” argued Advocate Redding, adding that since April 2020 there were regulations which were amended from time to time.

Kgalalelo Monthe of Monthe Marumo and Company ( Incorporating Molatlhegi and Associates) representing the government stated that a commercial loss cannot make the matter urgent.

He argued that the Applicant has to demonstrate that a Constitutional right has been violated and not leave it to the court to assume.

Monthe told the court that the Applicant can seek redress at the set hearing. According to Monthe, urgency is treated as a side issue by the Applicant.

“It is not explicitly explained as the law requires. Commercial loss does not call for urgency and does not mean you will not get a hearing in due course.

“The principle is that purely commercial or financial loss does not make an application urgent. A constitutional right is denied. Urgency is a nullity and should be dismissed,” Monthe told the court.

In its court papers, KBL stated that the President has never shared any clear, substantive, and compelling reasons for the current and previous alcohol bans.

While the government has said in the past that the prohibition on the sale of alcohol was imposed on account of evidence that consumption of alcohol increases the risks posed by COVID- 19 due to its negative effects on adherence to COVID- 19 protocols with reference made to ‘ evidence submitted’ to President Masisi by the Director of Health Services, KBL argues that no such evidence has been put forward.

In his replying affidavit, Masisi reminded KBL that he is the President and in charge of running the country and thus the responsibility of lifting Botswana out of the current Covid crisis lies with him.

In his sworn affidavit, Masisi starts by warning the court not to overstep its boundaries.

“I must however state that the impugned notice, which is subject of the challenge as described by the applicant, is a notice that contains regulations I made in the exercise of a legislative function conferred upon me by Parliament specifically by section 3 of the Emergency Powers Act ( EPA).

“To the extent that the decision complained of was made in the exercise of the legislative function, I am advised by the respondents’ attorneys of record, which advice I verily believe to be true and correct that save where there has been a breach of the constitution or the Act of Parliament in the discharge of the legislative function, the courts, including the Honourable courts, should not descend into the sphere of the other arms of Government by subjecting legislative power to review,” Masisi stated.